‘You’re Running Away From Your Argument’: Liberal Justices Expose Grim Farce In Domestic Violence Gun Case

Justice Elena Kagan. Getty Image/TPM Illustration
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On Tuesday, the Supreme Court debated a question so blindingly obvious to a reasonable person that it reveals how extreme its Second Amendment jurisprudence has become: Can the government take guns away from domestic abusers? 

United States v. Rahimi is the first gun-related case to reach the Court since its landmark decision last year in New York State Rifle & Pistol Association, Inc. v. Bruen. In Bruen, the right-wing majority both overturned a century-old state law and mandated that modern gun restrictions have a historical analogue to pass constitutional muster. 

Tuesday’s arguments married two of the most surreal ramifications of that decision. 

The Court’s newly established precedent forced lawyers to plumb the founding era for laws banning domestic abusers from possessing weapons at a time where even the most powerful white women were well over 100 years from suffrage and controlled entirely by their husbands. 

And secondly, Zackey Rahimi’s lawyer had to commit to the extremity of his argument, showing how far afield the Court’s radical stance on guns has already traveled. He contended that people like Rahimi — the Texas drug dealer who the Fifth Circuit Court of Appeals ruled had his firearms confiscated unconstitutionally after he attacked his ex-girlfriend and then threatened to shoot her if she told anyone — should get to keep deadly weapons. 

A couple of the liberal justices lambasted the ludicrousness of the case from both angles. 

“I’m a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people’s history counts,” Justice Ketanji Brown Jackson said to Rahimi’s lawyer, Matthew Wright.

She pointed to the reality of the limited founding era laws the Court has ruled litigants must pull from: They were written by and extended their protection only to, as Jackson summarized, “white, Protestant men.” Recognition of the legal rights of enslaved and indigenous people, for a start, is virtually nonexistent in the body of the law that undergirds the Court’s rigid originalism. 

Kagan joined with Jackson in cutting through the procedural fog. 

“I’ll tell you the honest truth, Mr. Wright — I feel like you’re running away from your argument because the implications of your argument are just so untenable,” Kagan said.

“It seems to me that your argument applies to a wide variety of disarming actions, bans, what have you, that we take for granted now because it’s so obvious that people who have guns pose a great danger to others and you don’t give guns to people who have the kind of history of domestic violence that your client has, or to the mentally ill,” she continued, adding that he seems to be “running away from it because you can’t stand what the consequences of it are.” 

Meanwhile, the conservative justices spent the arguments pondering who, exactly, counts as a “dangerous” or “irresponsible” person, seemingly to avoid handing down a decision that prohibits too many people from having guns.

Even for this court, with its extremely expansive view of the Second Amendment, the fallout, at least from an optics perspective, of upholding the 5th Circuit in this case would be brutal. Rahimi is a uniquely terrible posterboy for gun rights, and a whopping 82 percent of Americans support gun restrictions at least for those convicted of domestic violence.

The conservatives Tuesday seemed more interested in finagling how to narrow a potential decision reversing the 5th Circuit than they stood in staunch opposition to the government’s arguments. 

 “Responsibility is a very broad concept,” Chief Justice John Roberts fretted, picking at the government’s characterization of Rahimi. “I mean, not taking your recycling to the curb on Thursdays if it’s a serious problem, it’s irresponsible, by setting a bad example, by yelling at a basketball game in a particular way.”  

Justice Samuel Alito, too, seemed most perturbed not with the danger to the mostly women in these situations, but by the idea that the mostly men accused of domestic violence could have their firearms confiscated too hastily. 

The ramifications of the case for the millions domestically abused each year was largely absent from the arguments at large, except in the U.S. solicitor general’s opening and closing remarks. 

“As this Court has said,” Solicitor General Elizabeth Prelogar began, “all too often the difference between a battered woman and a dead woman is the presence of a gun.”  

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